Edge Law

A Fair and Balanced Weblog

Wednesday, February 25, 2004

Robert F. Kennedy, Jr., live in St. Louis

Robert F. Kennedy, Jr. spoke here today on a variety of topics, including his work to protect and preserve our environment, but surprisingly, much of his speech had political overtones. At one point, he commented that of course we can all go out and buy hybrid cars, but the problem is really one that begins with the subversion of our democratic system by large corporations. I wanted to share some of the highlights of his speech, including his comments on factory hog farming, Ralph Nader, and an eloquent argument about the benefit of higher federal CAFE standards for automobile fuel efficiency.

Kennedy began by describing his work to fight corporate hog farming with an introduction to his work on behalf of Riverkeeper, an environmental advocate for the health of the Hudson River in New York. He introduced us to folks working in North Carolina, but in fact, there are 110 Waterkeeper organizations throughout the world working to help keep our waterways healthy and safe.

Hog farmers are only one example of how corporate capitalism has perverted the free market economy. Kennedy asserts, as he did in his December Rolling Stone article that corporate hog farmers cannot make a profit without breaking the law, and without government subsidies. He describes the manner in which they have depressed the markets for hogs, put all competitive slaughterhouses out of business, and then run family farms out of business as well. While the ideal most efficient hog farm in a true free market would contain less than 300 hogs, these corporate slaughterhouses regularly slaughter upwards of 30,000 hogs a day, with disastrous environment effects. In addition to the pollution of our land, water, and air; these giant farms are emptying rural America all over this country, as no one can live safely near them, and the entire community economy that used to support small family farms is no longer necessary as resources for the huge farms is sent in from out-of-state; so banks, feed stores, even schools and churches are boarded up.

10 years ago, Kennedy says, there were 60,000 family hog farms in America. Today there are 10,000; and half of these are already in the process of being put of business by being forced to sell their hogs directly to the corporate hog barons for a fraction of their true worth because there is no longer a market for them to be sold to. And the communities aren't the only victims. The workers who work at the slaughterhouses only stay an average of 4 months for a variety of reasons, including low wages, no benefits, and dangerous work; additionally, many of them are not Americans, trucked in en masse from poor Mexican villages in violation of immigration laws. And once again, as corporate America claims they are bringing jobs to our communities (see, e.g. Wal-Mart), the jobs they are bringing are ones that no one wants to do, ones that are patently unsafe, and ones that do not pay anything approaching a living wage. And these jobs are replacing the old jobs which were safe, paid decent wages and provided benefits on the family farms.

Returning to his theme of corporate corruption in the political process, Kennedy described the difficulty of fighting the hog barons. He told us an anecdote of his recent trips to Poland in support of the local farmers there who are beginning to have to compete with the presence of these corporate giants. Apparently, Poland has a vibrant agricultural tradition which is thriving, in part because during the communist era, they could not afford pesticides, and so now Poland has thousands of organic diversified family farms whose products are much in demand throughout Europe. At any rate, Kennedy visited Poland to raise awareness about the practices of companies like Smithfield who were looking to enter the Polish market, and the Polish farmers protested, blocked roads, etc. Kennedy debated hog barons in the Poland Senate, and is now being threatened with a libel lawsuit in Poland to keep him out of the country, because in Poland, truth is not a defense to libel, and basically insults are criminalized, or so it would seem.

The main theme of Kennedy's talk is the increased power that corporations have over government, which is no surprise to anyone with their eyes open looking in the right places. The bottom line is that, at least with respect to the hog farmers, they could not turn a profit without the subsidies that allow them to purchase cheap grain, and without their obvious flaunting of environment laws concerning pollution.

When Kennedy opens up the floor to questions, someone asks about Ralph Nader's recent announcement that he's running for president; Kennedy responds with sadness that although Nader is someone who has been a tireless advocate for the right things, and they have been friends for many years, the only explanation for his campaign this year is "psychotic egomania" which, in truth, is sad.

Someone asks why the democratic candidates don't use the environment as a speaking point more often, and Kennedy replies that it isn't the candidates (or elected officials) fault - instead, he blames the media. The media doesn't want to talk about it because it impugns their interests. General Electric is the nation's #1 polluter, he says, and of course, they control NBC, etc; Westinghouse is #2, and they control CBS. The interests of the corporate polluters too often line up with the interests of the corporate media, and it just isn't news. Of course, what the media is interested in is profits. He gets the biggest laugh of the day when he reminds us of CBS's decision to not release the Reagan docudrama at a time when FCC regulations were before Congress, but wonders why "they didn't seem to have any problems with any of the stuff they published about my family over the last forty years."

Kennedy's most powerful argument, concerns CAFE standards, which federally regulate the average miles per gallon efficiency rate that the automobile industry must meet. He reminds us that this rate was around 18 mpg in 1979, and scheduled to rise to 26 mpg in 1986, and as high as 40 mpg in 2000. Of course, this progress was all undone by Reagan's administration, but the real point isn't one of negativity against Reagan, it's a subtle reminder of what would've happened had these standards not been rolled back. And of course, under Bush, we've had tax breaks FOR Hummers instituted, while tax breaks for buying hybrid cars have been repealed.

There are two interconnected arguments here which together have a great deal of force. The first is that because our government subsidizes the oil industry to such a large extent, Americans do not pay the "real" price of gas. We pay, currently, around $1.70 a gallon, and that's high by historic measurements, but not high enough to be a behavior changer. In Europe, they pay $5.00 a gallon, which may include a higher level of tax, but this is much closer to the true price of gasoline. Imagine an America where gas cost $5.00 a gallon. Do you think anyone would buy a car that didn't get at least 30 miles a gallon?

The other point is that we have a hundred million people driving around in SUVs and similarly fuel inefficient cars. If the CAFE standards had been held to, and these people all drove cars that made 40 miles per gallon, the savings in real dollars over a year would be enormous. Compared to the Bush tax "refund" checks of 2001 of $300 - American families would have $1000 or $2000 extra dollars in their pockets because of lower gas bills. Now, that's economic stimulus.

Kennedy finishes by tossing out some humorous phrases in connection with global warming. Leaving no doubt that global warming is a problem, and citing the Pentagon study which calls global warming our most serious national security issue today, he talks about how there just isn't any scientific opposition to global warming anymore, but that most Americans think the debate is still open. This is because, he explains, the corporate powers hire what he calls "biostitutes" to publish misleading reports that don't actually involve science that raise some doubt in the minds of the media. While these reports are scientifically worthless, and the media knows this, they'd rather not take the time to debunk them, instead just publishing that "there's still some debate on the issue." And these reports, published by places like the Heritage Foundation and other so-called "think" tanks, are in reality professional confusionists. These right-wing think tanks aren't actually interested in producing facts or using the scientific method to turn public opinion to their side, they're just interested in keeping the debate open. Confusion is their goal, and so far, they've had remarkable success.

Overall, Kennedy gave an excellent call to action, and I'll definitely be watching his work more closely in the future, and participating where I can.

State money can't be used for religious training

I was somewhat surprised when the opinion came down this morning in Locke v. Davey (pdf). A Washington state college student received a scholarship from the state under a program which prohibited the scholarships from being used for devotional studies. Since the student Davey was intending on pursuing a degree in pastoral ministry, the state refused to allow him to use their money to help pay his education expenses.

By a vote of 7-2, the Supreme Court said that the State of Washington could do this. Chief Justice Rehnquist wrote the opinion, and concluded that:

[W]e can think of few areas in which a State's antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an established religion.

Since the First Amendment prohibits the establishment of religion, the State can refuse to provide funds to train pastors or other church leaders. This makes perfect sense to me, but I imagine some people will be fairly upset about it, including Justices Scalia and Thomas (pdf).

When the State makes a public benefit generally available, that benefit becomes part of the baseline against
which burdens on religion are measured; and when the State withholds that benefit from some individuals solely
on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.

I'm not a First Amendment scholar by any stretch of the imagination, but this is a particularly interesting case, because it demonstrates the interplay between the two prongs of the First Amendment's protection of religion :

(1) Congress shall make no law respecting an establishment of religion,
(2) or prohibiting the free exercise thereof

Rehnquist and the majority see the scholarship program as threatening an establishment of religion by providing state funds for religious training. Scalia sees the denial of funds as prohibiting Davey's free exercise. Read the whole opinion if you're interested in this area.

Friday, February 20, 2004

Ketchup is a Vegetable; Fast Food is Manufacturing

In 1981, Ronald Reagan's budget director, David Stockman, proposed classifying ketchup as a vegetable as part of Reagan's budget cuts for federally financed school lunch programs (it would make it cheaper to satisfy the requirements on vegetable content of lunches). The suggestion was widely ridiculed and the proposal was killed.

In an homage to the greatest Republican President ever, the overlord of conservatism, the Bush administration is questioning whether they can account for the extraordinary loss of American manufacturing jobs by reclassifying other jobs into manufacturing. This, of course, would make it seem like less American jobs had gone overseas or to Mexico; but would, in essence, be a complete lie.

Is cooking a hamburger patty and inserting the meat, lettuce and ketchup inside a bun a manufacturing job, like assembling automobiles? That question is posed in the new Economic Report of the President.

"When a fast-food restaurant sells a hamburger, for example, is it providing a 'service' or is it combining inputs to 'manufacture' a product?" the report asks.

[T]he Census Bureau's North American Industry Classification System defines manufacturing as covering enterprises engaged in the mechanical, physical or chemical transformation of materials, substances or components into new products."

"The question is: If you heat the hamburger up are you chemically transforming it?" [David] Huether, [economist] said.

His answer? No.

This is ridiculous on so many levels, but foremost is the fact that manufacturing jobs, by and large, were unionized, paid relatively well, and provided decent benefits. Fast food jobs, on the other hand, well, you know. The rapid devolution of our economy into a majority of service jobs isn't per se a bad thing, but when the service jobs are minimum wage or slightly higher, and offer no significant benefits, or charge high premiums for those benefits which workers cannot afford (*cough* Wal-Mart *cough*), well, this works to widen the gap between classes.

Three asides.

1. Story from Atrios2. I actually thought of the connection to Reagan and ketchup before I fully read the NYTimes article.
3. Calpundit has an excellent resource for bloggers looking to link to NYTimes archives.4. Ketchup has not always been made out of tomatoes. That wikipedia link is pretty interesting.

This is what Bush's tax cuts really did

A key Senate committee passed a plan Tuesday that would raise Virginia's taxes by $1.8 billion each year but backs away from proposals to completely repeal the car tax and to give county governments the ability to impose a local cigarette tax.

"I am heartened that a majority of Republican legislators have now gone on record in support of a measure to add new state revenues," [Governor Mark] Warner said as the 2004 session reached its midpoint. "This action clearly reflects a growing understanding that without additional revenues, our most basic services will be compromised."

And of course, not surprisingly, Grover Norquist was up in arms about the idea that states ought to have enough money to provide basic services.

Earlier in the evening, Grover Norquist, president of Americans for Tax Reform, denounced plans to increase taxes and said [Sen. John] Chichester, [who authored the plan], is "hurting Republican candidates throughout the state of Virginia" by undermining the party's anti-tax message.

Of course, Bush isn't the only Republican to blame for budget shortfalls in Virginia. In 1997, former governor Jim Gilmore was elected on a one-issue platform - repealing the state's personal property tax for automobiles. If anyone's spent any time in Northern Virginia, you certainly know how many cars are there and can imagine how much revenue the car tax brought in. For someone to think that repealing the car tax without creating other revenue producers was fiscally wise, well, they'd have to be someone like President Bush. Virginians are smart and proud of their long tradition (I should know, I am one by birth). Governor Warner is popular not because he's presiding over budget cuts and tax hikes, but because Virginians know that he's just doing his best to deal with the mess his predecessor left him.

I hope all Americans realize this when President Kerry or Edwards proposes a plan that will necessarily raise taxes shortly after his inauguration.

Tuesday, February 10, 2004

The Solomon Amendments

Since gay marriage is continuing to dominate the headlines, and 'don't ask, don't tell' seems likely to continue for the near future, I thought I'd comment on one of the more insidious side effects of our government's failure to sanction equal rights for persons of all sexual orientations.

The story begins with the American Association of Law Schools. In 1990, several years before 'don't ask, don't tell', the AALS amended their Bylaw 6-4 concerning diversity to include sexual orientation. Bylaw 6-4(b) provides that this nondiscrimination as to sexual orientation applies to employers who wish to recruit at AALS member schools.

A member school shall pursue a policy of providing its students and graduates with equal opportunity to obtain employment, without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, handicap or disability, or sexual orientation. A member school shall communicate to each employer to whom it furnishes assistance and facilities for interviewing and other placement functions the school's firm expectation that the employer will observe the principle of equal opportunity.

However, after the passage of 'don't ask, don't tell' in 1993, the federal government's policy with regards to sexual orientation and the military and the AALS's commitment to nondiscrimination clashed. In 1995, the first Solomon Amendment was passed, prohibiting Dept. of Defense funds from being given by grant or contract to any institution of higher learning that prohibited military recruiting for any purpose. With minor modifications over the intervening years to expand its reach to include federal funds from a number of departments, including Education, Health and Human Services, etc., the conflict was clear.

Either our nation's law schools would admit an employer (the United States Armed Forces) that openly discriminates against individuals on the basis of their sexual orientation, or the universities with which these law schools were associated would face the risk of losing almost all federal funding for research, scholarships and financial aid, and whatever other purposes federal money is used at university campuses nationwide.

The Georgetown University Law Center has set up a wonderful site with all the technical details surrounding this issue and information about pending litigation where schools, including Penn and Yale, have brought suit against the Department of Defense on this issue.

Subsequently, most law schools caved to the pressure, and began admitting military recruiters to their campuses for interviews with students hoping to join the JAG corps. The bottom line is a step backwards for equal protection. The quote below is from the top of the Georgetown page. It certainly fits:

The drafters of the Constitution] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Where I've Been

The last week I've been serving on jury duty here in the City of St. Louis. It was a rewarding experience, and one that I did not expect to have, considering I've been in law school for almost two years now. In most jurisdictions (if not all), licensed attorneys are exempted from jury service, and the rumor I had always heard was that law students are de facto exempt because no lawyer will allow a law student to serve because of our particularized knowledge of the law and the justice system.

These rumors were incorrect, and after the conclusion of the case I was involved in, I asked one of the lawyers about this, and he commented that he had had law students on juries before, and wasn't opposed to the notion as a matter of course, though of course, in a different type of case, it might be more or less a good thing for the litigants.

At any rate, for a soon-to-be attorney, seeing the voir dire process and the inside of a jury deliberation were enormously valuable experiences, and although I missed a number of classes, I was in the real world classroom, which in many cases is a better place to learn.

Monday, February 02, 2004

WMD 9/11 Iraq WMD 9/11 Saddam

Crooked Timber makes sense of all the nonsense being floated in the media lately about the CIA misleading the President, that I've included most of it, because there's no way I could've written this in four paragraphs so eloquently.

It's regularly stated that the behavior of Saddam Hussein in obstructing weapons inspections led analysts to assume he had something to hide. I shared this view until late 2002, and was reinforced in this by the behavior of Bush and Blair, including the various dossiers they published and the push for UN Resolution 1441 - they acted like police who had their suspect dead to rights, and only needed a search warrant.

In November and December 2002, however, the facts changed. First Saddam announced that he would readmit UN inspectors, without restrictions on the sites to be inspected and that he would declare all his weapons. Then he proceeded to do just that, claiming to have no weapons at all. Meanwhile Bush and Blair suddenly started hedging about the nature of the knowledge they had declared. The same pattern proceeded right up to the outbreak of war. Time after time, some condition would be declared crucial by Bush and Blair (overflights, interviews with Iraqi scientists, out-of-country interviews with Iraqi scientists), the Iraqi government would agree after a brief delay and then new condition would be raised. As quite a few observers noted, the behavior was the same as that of the Austro-Hungarian government with respect to Serbia in 1914.

Given the change in facts, any unbiased observer would have concluded, correctly that the balance of probabilities favored the hypotheses Bush and Blair were bluffing and that there were no weapons of mass destruction in usable form. I drew precisely this conclusion at the time, though with the mistaken corollary that Blair would stick to his word and refuse to go to war once Saddam called their bluff.

If those facts weren't enough, it was obvious that, if Saddam did have weapons he would use them in the early days of war, preferably before Coalition troops had entered the country. Thus, it was apparent by the first days of the war that (with probability close to 1), there were no usable weapons. The fact that the contrary belief prevailed for so long is testament to the power of faith in the face of experience.

This is the bottom line why the WMD argument fails. Saddam was allowing inspectors in for the first time since 1998. They were making progress, and Saddam was meeting their demands. Instead of waiting for a report about WMD, or weighing other diplomatic options, Mssrs. Blair and Bush marched our troops in. Combine this with the myriad evidence that this administration wanted to invade Iraq at least by Sep. 12, 2001, and probably on Jan. 20, 2001 if they could manage it, and well, you've got a good case that maybe we ought to elect someone else in November.

Sunday, February 01, 2004

Bad news for Dean

Michigan Governor Jennifer M. Granholm, Lt. Governor John D. Cherry, Jr., and Congressman Sandy Levin today announced they are endorsing John Kerry for President of the United States. Granholm, Cherry, and Levin, three of the state’s leading Democrats, are supporting Kerry because of his plan to create jobs, expand access to affordable health care, and strengthen public education

As I've written about before, Governor Granholm is tremendously popular with Michiganders, and her support is a big boost for Kerry, especially because the caucuses in Michigan aren't until February 7, but they're the first 'election' after Tuesday's seven contests. Part of Howard Dean's new strategy was, in effect, to not run as hard in the Feb. 3 contests in order to focus on Michigan, Maine, Washington and finally Wisconsin (whose primary is Feb. 17).

In fact, Governor Dean is in Michigan at a rally today at 3:15pm (though to be fair, he was in Arizona, one of the Feb. 3 states yesterday). This post from new Dean campaign CEO Roy Neel spells out the new and improved strategy.

In the meantime, Howard Dean is traveling to many of the February 3 states, sending surrogates—including Al Gore—to most, and conducting radio interviews in all. We believe that one or more of our major opponents will be eliminated that day, and that the others will fall by the wayside as our strength grows in the following days. As a result we have elected to not buy television advertisements in February 3 states, but instead direct our resources toward the February 7 and 8 contests in Michigan, Washington and Maine. We may not win any February 3 state, but even third place finishes will allow us to move forward, continue to amass delegates in Virginia and Tennessee on February 10, and then strongly challenge Kerry in Wisconsin.

With Michigan playing a big role in these plans, Gov. Granholm's endorsement is not going to be received well by Dean supporters. She's also breaking somewhat of a tradition that's held so far in the race, as Iowa Governor Tom Vilsack did endorse Kerry, but he endorsed him after the Iowa caucuses. My governor, Bob Holden, has similarly remained silent, though if form holds true, I'm sure he'll endorse Kerry on Wednesday as well.

It's depressing, but to be expected. People want to support a winner, and above all else, democrats everywhere want to make sure that George Bush loses in November. I'd be hypocritical to criticize Gov. Granholm for endorsing who I think isn't the best candidate on the grounds that her endorsement isn't timely since I supported Al Gore's decision to come out and endorse Gov. Dean in November. It's good news for John Kerry certainly; but for candidates hoping to challenge him by picking up delegates here and there and making it until March 2's delegate fest; this is horrible news as Michigan will offer more delegates on Feb. 7 than any state contested to date, and more delegates than any state that's contested before March 2.